[2014] KEHC 7718 (KLR)
The court found that the period of delay between the plaintiff's last action and the filing of the application for dismissal was approximately eleven months, which does not meet the twelve-month threshold required under Order 17, rule 2 (1) of the Civil Procedure Rules. The court also noted that the plaintiff had...
Source-derived case information.
- Citation
- [2014] KEHC 7718 (KLR)
- Parties
- Plaintiff: Patrick Kariuki Muiruri; Defendant: Barclays Bank of Kenya Limited; Defendant: The Standard Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1251 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- applications for dismissal refused; suit to proceed
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Pre Trial Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kariuki Muiruri
Plaintiff
Barclays Bank of Kenya Limited
Defendant
The Standard Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17, rule 2 (3) of the Civil Procedure Rules.
- 2 Whether the delay by the plaintiff in prosecuting the suit is inordinate and inexcusable.
- 3 Whether the defendants will suffer prejudice if the suit proceeds to hearing.
Ratio Decidendi
The court found that the period of delay between the plaintiff's last action and the filing of the application for dismissal was approximately eleven months, which does not meet the twelve-month threshold required under Order 17, rule 2 (1) of the Civil Procedure Rules. The court also noted that the plaintiff had taken steps to comply with pre-trial requirements and that the defendants themselves had not fully complied. Therefore, the applications for dismissal were premature and not justified. The court dismissed the applications with costs to the plaintiff.
Court Disposition
applications for dismissal refused; suit to proceed
Orders
- Both defendants' applications for dismissal for want of prosecution are dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO 1251 OF 2005
PATRICK KARIUKI MUIRURI..................................….... PLAINTIFF
VERSUS
1. BARCLAYS BANK OF KENYA LIMITED
2. THE STANDARD LIMITED......................................DEFENDANTS
R U L I N G
1. Both Defendants have applied by notices of motionrespectively dated 4th July 2013 and 2nd April 2013 for dismissal of the Plaintiff’s suit for want of prosecution. The applications are under Order 17, rule 2 (3) of the Civil Procedure Rules (the Rules).
2. The grounds for the applications stated on the face thereof include –
(i) That it is over one year since the Plaintiff took any step towards prosecution of the suit.
(ii) That the delay is inexcusable and inordinate.
(iii) That the Defendants should be relieved of the burden of the litigation as the Plaintiff has lost interest in the suit.
There are affidavits sworn in support of the applications which give a history of the litigation.
3. The Plaintiff has opposed the application by replying affidavit sworn on 16th September 2013. Grounds of opposition emerging therefrom include -
(i) That whereas the law firm which had conduct of the matter previously for him misplaced his file in the course of its re-location to other offices, and hence the inaction by the said firm towards setting a hearing date, he has since appointed another firm of advocates and had already filed his statement and bundle of documents with the aim of getting the matter ready for trial by the time the present applications were filed.
(iii) That no prejudice will be suffered by the Defendants if the matter is heard on its merits.
4. I have considered the submissions of the learned counsels appearing. The Plaintiff’s counsel relied on his written submissions filed on 20th February 2014. I have also perused the court record.
5. The delay is from 16th May 2012 when the Plaintiff filed his list of documents and witness statements to 3rd April 2013 when the 2nd Defendant’s present application was filed. That is a delay of about eleven months. That does not meet the threshold of 12 months set out in Order 17, rule 2 (1) of the Rules. It may also be observed that prior to the Plaintiff filing his witness statements and documents on 16th May 2012 there had been orders made for all parties to comply with pre-trial requirements under Order 11 of the Rules. I note from the record that the 1st Defendant filed one witness statement on 3rd September 2013. The 2nd Defendant does not appear to have complied.
6. Both the Defendant’s applications are premature and must be refused. They are dismissed with costs to the Plaintiff. It is so ordered.
DATED AT NAIROBI THIS 20TH DAY OF MARCH 2014
H P G WAWERU
JUDGE
DELIVERED THIS 21ST DAY OF MARCH 2014